Stormontgate is hardly the first sign that the Northern Ireland Public Prosecution Service operates under direct political instruction. Witness, for example, the until-recently revolving door through which certain UDA 'brigadiers' could enter and leave Belfast High Court without a care in the world. But by citing the "public interest" as a reason to drop the spy-ring case the PPS has compromised its credibility even further.
When the police send a file to the PPS, prosecutors must subject the case to two tests before deciding to bring it to trial.
The 'evidentiary test' determines if there is enough evidence for a reasonable chance of a conviction. Only if a case passes this first test can it be subjected to the 'public interest test'.
In other words the spy-ring case was abandoned not because there was insufficient evidence but because there was so much evidence that attempting to drop the case for lack of it would have made the PPS a laughing stock.
But if avoiding ridicule was the intention then this scandal is a failure twice over, because under PPS guidelines the spy-ring case passes the public interest test as well.
First it must be noted that the public interest was never meant to be invoked by prosecutors for grandiose political purposes. In England, where the Crown Prosecution Service operates under near-identical guidelines to the PPS, public interest is usually cited in cases involving young people, the mentally ill or minor offences where a criminal conviction would be disproportionate or counterproductive. In all cases the guidelines specify that the more serious the offence, the more important it is to the public interest to proceed with a prosecution. The Northern Ireland Code for Prosecutors was clearly drafted with the same objectives in mind. It specifies 16 points to consider when deciding if a case is in the public interest. These include (and I quote them verbatim): where the defendant was in a position of authority or trust; where the defendant was a ringleader or organiser of the offence; where the offence was carried out by a group; where the offence was carried out pursuant to a plan in pursuit of organised crime; where the offence was motivated by hostility towards a person because of their political beliefs; where the offence is prevalent; where the offence was committed against a person serving the public; where the victim of the offence has been put in fear; where there is any element of corruption and where there are grounds for believing that the offence is likely to be continued or repeated. The spy-ring case meets all these considerations, in addition to being a serious offence which passed the evidentiary test by the PPS's own admission.
So why was it dropped?
Unable to explain its actions under its own guidelines, the PPS has cited concerns under the Human Rights Act. However, it will not say what part of the act a prosecution might have breached or even if the imperilled human rights in question were those of the defendants.
What harm would it do to the presumption of innocence to be a bit more specific? Indeed, wouldn't it affirm the presumption of innocence to be a lot more specific?
The Northern Ireland Human Rights Commission says its primary concern with the PPS is the lack of requirements for disclosure on public interest decisions.
Director of public prosecutions Sir Alisdair Fraser says that his policy on such disclosure is "evolving". Unfortunately it has not evolved enough to stand up – at least, not in public.
The PPS has simply announced that it will make no further statements on the matter, thereby hanging the PSNI out to dry and leaving everyone else to clean up the resulting political mess.
The irony of all this is that the backroom peace processors who ordered it think they are cleaning up a political mess. In its response to the conveniently-timed collapse of the case, published with uncharacteristic speed on the same day that the High Court threw it out, the NIO says: "The government is determined that confidence will be rebuilt and that devolved government in Northern Ireland will be restored."
But how will confidence in the institutions of government be restored by making a mockery of their independence?
The PPS stands accused of evasion and operating under political instruction. The case against it passes the evidentiary test. Is it really in the public interest to let that go by default?
